Argument analysis: Alito and Ginsburg spar over the rules for timely appeals

Posted Tue, October 10th, 2017 8:03 pm by Howard M. Wasserman

Tuesday’s argument in Hamer v. Neighborhood Housing Services of Chicago was unique in several respects. Justice Stephen Breyer did not ask any questions; Justices Anthony Kennedy and Neil Gorsuch, ordinarily active participants in arguments who stake out staunch positions, asked about one issue each. Justices Ruth Bader Ginsburg and Samuel Alito dominated the argument, with the latter challenging Hamer’s counsel, Jonathan Herstoff, and the former offering numerous comments and questions to support Herstoff’s argument and to guide his answers on issues.

The question in this case is the proper characterization and application of Federal Rule of Appellate Procedure 4(a)(5)(C), which allows a district court to extend the time for an appellant to file a notice of appeal on a showing of excusable neglect or good cause, but for no more than 30 more days beyond the prescribed time of 30 days from entry of the judgment appealed from. The question for the Supreme Court is whether that rule is jurisdictional and whether it is subject to waiver, forfeiture or equitable exception.

Herstoff led with his core argument – the time limit cannot be jurisdictional because it appears in a court-promulgated rule of procedure rather than a congressionally enacted statute. Justice Elena Kagan and Alito wondered whether that must be true and why. Herstoff responded that it derives from Article III of the Constitution, which grants Congress the power to set the jurisdiction of the lower federal courts, and from a “long line of cases,” including, as Ginsburg highlighted, Justice Clarence Thomas’ decision in Bowles v. Russell. Ginsburg then set Herstoff to discuss the 1991 amendments to 28 U.S.C. § 2107(c), which removed from the statute an identical 30-day limit on extensions of time; under her questioning, Herstoff argued that Congress made significant, more-than-technical changes, eliminating statutory support (and jurisdictionality) from the extension limit.

There followed a lengthy exchange in which Alito suggested that a (nonjurisdictional) “mandatory claim-processing rule” must have some teeth, such as by the rulemaker making the rule not subject to waiver or forfeiture. Ginsburg jumped in to suggest that calling a claim-processing rule mandatory means it must be applied where raised, but not that it is non-waivable or non-forfeitable; otherwise, it would be the same as declaring the rule jurisdictional, which judge-promulgated rules are not supposed to do. Alito then asked who the extension limit in Rule 4(a)(5)(C) is designed to protect; when Herstoff responded that it protects both the appellee and the court of appeals, Alito asked why the court of appeals cannot “put some teeth” in the rule, not by labeling it jurisdictional, but by placing a “thumb certainly on the scale” in applying it. This followed on Kennedy’s one line of questioning from earlier in the argument, as to whether the parties could ask the district court not to enter judgment on an order, lengthening the time for appeal for months or years. Herstoff argued that the doctrines of extraordinary circumstances and bad faith limit such gamesmanship.

Damien Stewart, representing Neighborhood Housing Services of Chicago, argued that NHSC could win if the court labels the rule either jurisdictional, as the U.S. Court of Appeals for the 7th Circuit did, or a mandatory claim-processing rule that was not waived or forfeited, because it was asserted in pre-merits briefing in the court of appeals. But Ginsburg jumped on NHSC’s failure to notify the district court that the order was defective in giving Hamer 60 additional days to appeal. This “allows the defendant to create a trap” by not raising the erroneous extension until more than 30 days have passed and it is too late for the district court to correct its error. Stewart responded that expecting NHSC to alert the district court to the error “ignores the realities of litigation,” in which parties focus more closely on the rules at certain points than at others. NHSC did not look at the rules immediately upon receiving the district court time-extension order (a point that drew an incredulous “You didn’t have an opportunity to look at the rules?” from Ginsburg). Instead, it focused on and argued the unlawful extension in pre-merits briefing in the court of appeals, although only after an erroneous docketing statement that mistakenly conceded the timeliness of the notice of appeal. This caused Justice Sonia Sotomayor and Ginsburg to take turns asking whether forfeiture resulted from the docketing statement conceding jurisdiction and NHSC not raising timeliness until tipped off by the court of appeals; Stewart insisted that cases support his argument that parties preserve issues by raising them in merits briefing and that NHSC had done so even earlier in this case, in pre-merits briefing.

Ginsburg, Kagan and Sotomayor then pushed Stewart on the meaning and significance of the 1991 amendments to Section 2017(c), whether legislative history showed that the removal of the statutory extension limit was inadvertent, and whether Congress could change a rule from jurisdictional to nonjurisdictional by amending the statute. Gorsuch’s lone question came near the end of Stewart’s argument, asking why NHSC did not raise the timeliness issue by cross-appealing the extension order to the 7th Circuit, which Hamer argued in briefing constituted forfeiture. Stewart replied that a cross-appeal is necessary only when an appellee seeks to enlarge its own rights or to lessen the appellant’s rights. Gorsuch responded that NHSC did seek to lessen Hamer’s rights, by extinguishing the longer time to file the appeal that the district court had granted. Stewart argued that the district court lacked the authority to grant that extra time, which relieved NHSC of the duty to cross-appeal.

On rebuttal, Herstoff argued to Alito that NHSC forfeited the challenge to the time extension after the 30th day from the original appeal deadline, the point at which any appeal no longer could be timely under the rules. Alito questioned how requiring appellees to call an invalid time extension to the attention of the court and the opposing party conforms to the adversarial system; Herstoff argued a prevailing party must do so if it wishes to enforce Rule 4(a)(5)(C). Herstoff then engaged with Chief Justice John Roberts and Alito about what NHSC would have cross-appealed from and about the distinction between the court of appeals affirming the district court’s grant of summary judgment and the court of appeals dismissing Hamer’s appeal as untimely. He argued, referring to Gorsuch’s earlier question to Stewart, that NHSC sought to limit Hamer’s rights by getting the court to dismiss the appeal without considering whether summary judgment was properly granted.

The tenor and amount of questioning hints at a court inclined to reverse the 7th Circuit’s conclusion that Rule 4(a)(5)(C) is jurisdictional; Kagan even asked Stewart whether he no longer was relying on that position. Only Alito seemed dubious of Herstoff’s arguments, and his concerns focused more on waiver and forfeiture than jurisdictionality. One open issue, raised by Ginsburg early in Herstoff’s argument, is whether the justices will resolve the waiver and forfeiture issue or remand for the 7th Circuit to conduct that analysis, as it did not do previously.

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.